U. S. Government Printing Office
Office of the General Counsel
Contract Appeals Board

Appeal of Mill River Press Lithographers, Printers
August 12, 1977

Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Drew Spalding, Member
Panel 75-2

This is the decision of the Contract Appeals Board in an appeal
filed by Mill River Press Lithographers, Printers, 65 Prince
Street, Brooklyn, New York 11201, herein also referred to as the
Contractor or Appellant.  This appeal was filed on January 2,
1975, appealing the rejection of a printing of a book under GPO
Jacket No. 470-879, Purchase Order No. 59369.  The appeal is
brought under Article 29, U.S. Government Printing Office
Contract Terms No.,l.

Statement of the Case

On May 21, 1974, the Government Printing Office, hereafter GPO)
accepted the bid of the Contractor for the printing of 6,990
books for the Library of Congress entitled "Viewpoints:  A
Selection From the Pictorial Library of Congress."  On December
4, 1974, the GPO in the final decision of the Contracting Officer
rejected the books produced by the Contractor because the paper
was not equal to the specifications and the printing was not
good, clear and sharp with full and uniform ink coverage.  The
decision of the Contracting Officer further required that the
books be "replaced in strict accordance with the specifications
at no additional cost to the Government. . . ."

On January 2, 1975, the Contractor appealed this decision to the
Public Printer stating, inter alia, ". . . that the book is
commercially acceptable and saleable, and that the shortcomings,
such as they are, are more the fault of the Government Printing
Office than Mill River Press" and that the problems with the
paper were due to the mitigating circumstances of a "serious
paper shortage at the time and we had the pressure of the
contract schedule."

The Contractor reprinted the books pursuant to the decision of
the Contracting Officer and the second printing was accepted by
the Government.

The issues in the appeal are whether the rejection of the first
printing by the GPO and the requirement that the Contractor
reprint the book at its own cost were proper under the Contract.
(Article 13, Contract Terms No. 1.)

Jurisdiction

The Contract Appeals Board (hereafter designated as the Board)
has authority (jurisdiction) to decide disputes between GPO and
its contractors which cannot be resolved at the Contracting
Officer's level.  It derives this authority from the "Disputes"
clause, Article 29, U.S. Government Printing Office Contract
Terms No. 1, which is incorporated by reference into the
contract.  It is not necessary to spell out the language stated
therein, except that the Board has been appointed by the Public
Printer as "his duly appointed representative for the
determination of such appeals . . . . In connection with any
appeal proceeding under this clause the Contractor shall be
afforded an opportunity to be heard and to offer evidence in
support of his appeal."

The Board convened on March 28, and April 5, 1977, and afforded
appellants a full opportunity to present the merits of this
appeal.  A contract reporter was retained to provide a verbatim
transcript of the hearing.

Findings of Fact

GPO Jacket No. 470-879 was for the production of 6,990 case bound
books for the Library of Congress entitled "Viewpoints:  A
selection From the Pictorial Collections of the Library of
Congress." The books were to be printed on "white opacified
offset must be equal to GPO Lot No. 24a weight 120" paper
casebound, packed and shipped complete on or before September 5,
1974.  (Emphasis added.) The specifications provided that the GPO
would furnish a "complete set of offset film negatives ready for
imposition, contractor to create stamping media for cover from
furnished negative." (Emphasis added.)

The bid of the Contractor in the amount of $27,853 was accepted
by GPO on May 21, 1974, and Purchase Order No. 59369 was issued
on May 22, 1974.

Subsequent to this date, the Contractor telephoned Mr. David
Logan, a GPO Contracting Officer to inform him that many
negatives furnished by the GPO were damaged, marked and full of
holes.  Mr. Logan responded on July 15, 1974, that he consulted
the specification writer, who advised him that the photographs of
the negatives were old and had scratches and cracks but that the
negatives were "okay to go ahead and print the job with the
furnished negatives; that the negatives are good enough to do a
satisfactory job . . . that we will accept the best results from
the negs as furnished." (R 41, 42, 43, 45.)

On September 19, 1974, the GPO was advised by the Library of
Congress that they rejected the publication for inferior quality.
The customer agency listed about 140 specific complaints about
the printing quality of the books relating to pin holes, dust
spots, variations in color intensity, smudges, white marks, loss
of detail, and untrimmed end paper.  The Contractor was notified
on October 9, 1974, of the complaints of the Library of Congress.
A request was made to the Library of Congress to accept the books
at a reduction of 25 percent, but the proposal was rejected.  (R
94, 121.)

A comparison of halftone and line negatives furnished by GPO on
Jacket 470-879 for use of the Contractor was made by the GPO
Offset Negative Section on or about November 1974 and as a
result, it was concluded that the tone value from the whitest
highlight through varied greys to the black of the shadow area
was consistent with the original copy.  The halftones were
compared with the original copy and it was concluded that the
negatives prepared by GPO and delivered to the appellant were of
good quality and ready for imposition.  (R II-13, 17, 18.)

The Superintendent of Typography and Design Division, GPO,
reported to the Contracting Officer on November 20, 1974, that
the product was unacceptable, citing overall poor workmanship
resulting in "excessive lint and dirt on the halftone
illustrations and total lack of full and uniform coverage."  He
noted the lack of folios on 11 pages which were on the negatives
furnished by the GPO.  It was further noted that the GPO test of
the paper stock used revealed that it was below the quality
required by the contract specifications in "opacity, pick
qualities and across direction - folding endurance;" that many of
the discrepancies in the printing of the book, i.e., lack of
detail and dirty conditions of the illustrations, were due to the
use of this unspecified stock.  While he noted that some errors
in the negatives were due to GPO, it was noted that these defects
alone would not be serious enough to warrant rejection.  On his
recommendation, the job order was totally rejected and ordered
reprinted at no additional cost to the Government.  (File Exhibit
12, R 98.)

Mr. John Tanner, a GPO Printing Technologist, possessing a
background in the study of paper science at Syracuse University
and experienced as a quality superintendent at a paper mill,
participated in the October 11, 1974 testing of the stock used in
the initial printing.  It revealed that the pick test of the
paper failed to meet the required standard of 13; that the
analysis of the paper indicated a standard of 10 and that it may
be interpreted that the paper had a soft surface; that when the
blanket of the press lifted up, the wood picks caused white spots
to appear in the halftones and resulted in the poor quality
printing of the first job; that the use of the substandard paper
was the major cause of the deficient printing and therefore, the
basis for the rejection of the first printing.  (R 11, 68, 75.)

The Issues

It is the position of the Appellant that they should be
compensated for the initial printing because their failure to
deliver acceptable items was not the fault of the Appellant.  The
Appellant contends that the specifications should have provided
additional specifications to apprise the Contractor of the high
quality product desired by the agency with respect to the
standard of printing; that A-l printing would be required; that
advanced proof sheets should be sent to to the GPO for prior
approval and a requirement that Dylux proofs or other reference
material be furnished the Contractor.  The Contractor also
alleges the negatives had flaws and had holes.

The Government answers that the specifications used in the
contract were primarily performance specifications and that
Appellant's failure to produce an acceptable printing job was for
the following reasons:

1.  The paper upon which the books were printed did not conform
to the specification.

2.  The printing was not "good, clear and sharp with uniform ink
coverage." (File Exhibit 14.)

Opinion

As to the first basis for rejection, the Contractor admits that
the paper used to produce the initial printing was not in
accordance with the specifications.  Appellant contends, however,
that the serious paper shortage of 1972 was a mitigating
circumstance requiring lenient consideration by this Board.

The general rule regarding mitigating circumstances is that the
Contractor shall not be liable for excess costs if the failure to
meet his obligations under the contract arises out of "causes
beyond the control and without the fault or negligence of the
contractor."  Such causes are set forth in the contract and
include, but are not restricted to "acts of God or of the public
enemy, acts of the Government in either its sovereign capacity or
contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe
weather."  (Article 18(c), GPO Contract Terms No. 1.)

Although a shortage of supplies is not mentioned in the contract
list of excusable causes, there have been cases which considered
such a factor to be a mitigating circumstance beyond the
Contractor's control.  However, these cases uniformly require the
shortage of supplies to be abnormal and unforeseeable. American
Emblem Co., Inc. (1943) NDBCA No. 38, 1 CCF 90.

The Contractor should have looked into this matter prior to
submitting the bid.  Lack of diligence in securing timely
assurance of the proper paper was not without the Contractor's
fault.  Mere difficulty in obtaining or unavailability in the
usual course of business does not constitute impossibility of
performance so as to excuse default in the absence of a clear
showing that such conditions were so abnormal, extraordinary or
unusual that they could not have been foreseen or anticipated at
the time of making the contract. Thermo Nuclear Wire Industries,
ASBCA, 61-1 BCA  2869.

The failure to procure the required quality of paper for contract
performance was not excusable in this case.  The burden of proof
is on the Contractor to demonstrate that failure to obtain the
proper supplies was due to causes beyond the Contractor's
control. Beco, Inc., ASBCA, 1964 BCA  4403; Highway Products,
Inc., ASBCA, 69-2 BCA  8064.  The Contractor admitted using
paper not in accordance with specifications in printing the
initial job.  Therefore, Appellant assumed the risk of the
possibility that the quality of the type of paper used could
result in an unsatisfactory end product.

The second point of rejection according to the final decision of
the Contracting Officer was that the printing was not good, clear
and sharp with uniform ink coverage.

By the very nature of the contract, the Appellant in this case
was required to perform in accordance with the requirements of
the contract.  It called for workmanship in connection with the
product to be "first class".  The Contractor was required to
perform exactly in accordance with the details of the
specifications.  In this case, the specifications required the
Contractor to print a book from "a complete set of offset film
negatives ready for imposition." Although the original halftones
were old, the evidence as adduced disclosed that the negatives
were suitable for printing the required end product.

The Government impliedly warranted that the negatives would
produce a satisfactory end product.  The term "a complete set of
offset film negatives ready for imposition" means that the
negatives are ready to print and that the Contractor does not
have to make proofs, do stripping, mending or opaquing.

The appellant contended that the specifications should have
contained additional provisions such as apprising the Contractor
that A-l printing is required, proof sheets be approved by GPO,
and Dylux proofs or other reference material be furnished the
Contractor.  However, the weight of the evidence reveals that the
use of the substandard unspecified paper stock was the major
cause of the deficient printing and, therefore, sufficient basis
of the rejection of the initial printing.

We are unable on this record to conclude that the Government knew
or should have known that the Contractor was producing the job
with the use of unspecified paper stock.  On July 15, 1974, the
Contractor telephoned Mr. Logan of the GPO in reference to the
quality of the negatives, but did not advise the GPO of its
problem concerning the use of unspecified paper.  The contract
provides the following:

"In the event the bidder cannot furnish any of the paper
specified by the Government, he may submit an alternate bid
specifying the kind and weight of paper he will furnish, provided
that such alternate paper is suitable for the intended use of the
end product in respect to weight, opacity, thickness and writing
quality.  In the event the bidder submits an alternate bid, he
must submit with his bid 25 sample sheets . . . of the paper he
proposed to furnish.  The Government reserves the right to reject
any alternate papers which in its opinion are not suitable for
the intended use of the end product.  Alternate bids will only be
considered for award in the event no bids are received which
offer to furnish the paper specified by the Government."

As indicated heretofore, the major cause for the low quality of
the printing, which lacked sharpness, clarity and uniform ink
coverage, was the Contractor's use of unspecified paper.  The
award was made to the Contractor on the basis of being the low
responsive, responsible bidder, whose bid took no exception to
the Government specified paper options.  Appellant's use of
unsuitable paper under the circumstances was at their own peril.

While we are sympathetic to the Contractor because of their
financial loss, we feel that the responsibility in this case
rested with the Contractor who is required to perform in
accordance with the.specifications; in deciding where the risk of
loss is to fall, we must balance the respective fault involved
and weigh the reasonable expectations of the parties which the
facts of the particular case support.

On the record before us, we conclude that the direct cause of the
failure to perform and produce a satisfactory publication, was
not deficient or incomplete specifications, but rather the
failure of the Appellant to assure the proper paper availability
prior to obligating the Contractor to deliver and to use
specified paper.

Therefore, this appeal is denied.